McComb_CJP_1977.pdf

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19 Cal.3d Spec. Trib. Supp.19 Cal.3d Spec.Trib.Supp. 1, 564 P.2d 1, 138 Cal.Rptr. 459(Publication page references are not available for thisdocument.)

MARSHALL F. McCOMB, an Associate Justice of the Supreme Court,Petitioner,

v.COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

S.F. No. 23585.

Supreme Court of California

May 2, 1977.

SUMMARY

In a special proceeding under Cal. Const., art. VI, §§ 8, 18,the Commission on Judicial Performance conducted an investigationand hearing on the fitness of an 82-year-old associate justice ofthe Supreme Court to continue in office. While the proceeding was

pending, Cal. Const., art. VI, § 18, subd. (e), was amended toprovide that a recommendation of the commission for the censure,removal, or retirement of a judge of the Supreme Court shall be

determined by a tribunal of seven Court of Appeal judges selectedby lot. On findings that, after 50 years as a judge, theassociate justice was suffering from chronic brain syndrome

(senile dementia) detrimental to the performance of his judicialduties, of wilful and persistent failure to perform such duties,

and that his disability was (or was likely to become) permanent,the commission recommended that he be retired or removed fromoffice.

On the justice's petition to the Supreme Court for writ of

review, the duly selected tribunal, holding that specificinstances of bizarre behavior on the justice's part were notwilful but merely symptomatic of senility, rejected the

commission's alternative recommendation of removal from office,and, upholding the commission's finding of chronic brainsyndrome, ordered that he be immediately retired and that such

retirement be deemed voluntary. The tribunal held that, becauseits creation under the new constitutional provision constituted a

change of procedure, not of substantive law, the justice'sobjection to its authority, as being an application of an ex postfacto law, was without merit. Similarly the tribunal rejected thejustice's objections that impeachment was the only constitutional

way he could be removed from the court, and held that, becausethe instant proceeding was neither a criminal prosecution nor aproceeding that existed at common law or one for which a trial by

jury was statutorily provided, he was not entitled to such atrial. Furthermore, the proper standard of proof in the special


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proceeding was not proof beyond a reasonable doubt, as contendedby the justice, but proof by clear and convincing evidence

sufficient to sustain a charge to a reasonable certainty. Otherobjections rejected by the tribunal related to the inclusion oftwo nonlawyers on the Commission for Judicial Performance, to the

justice's alleged preclusion by Cal. Rules of Court, rule 906,

from moving to dismiss the proceeding for lack of jurisdiction,and to other matters upon which the justice's contentions were

held to be unsupported by the record or irrelevant. (SpecialTribunal (Cal. Const., art. VI, § 18, subd. (e)).

Opinion by The Tribunal.)

HEADNOTES

Classified to California Digest of Official Reports

(1) Constitutional Law § 4--Operation and Effect--Introductionof Tribunal to Review and Determine Recommendation of Commission

on Judicial Performance-- As Procedural Change.The 1976 amendment to Cal. Const., art. VI, § 18, subd. (e),

providing that a recommendation of the Commission on JudicialPerformance for the censure, removal, or retirement of a judge ofthe Supreme Court shall be determined by a tribunal of seven

Court of Appeal judges selected by lot, constituted a change ofprocedure, not of substantive law. The application, therefore, ofsuch constitutional provision to a pending proceeding inquiring

into the mental fitness of an associate justice of the SupremeCourt to continue in office did not constitute an application ofan ex post facto law (U.S. Const., art. I, § 9, cl. 3, and § 10;

Cal. Const., art. I, § 9).

(2) Judges § 6--Removal--Special Proceeding as Constitutional

Alternative to Impeachment.Though judges of state courts are subject to impeachment formisconduct in office (Cal. Const., art. IV, § 18, subd. (b); Gov.

Code, § 3020), a constitutional alternative to the impeachmentprocess was made available by the adoption of Cal. Const., art.VI, §§ 8, 18, specifying reasons for which the Supreme Court, onrecommendation by the Commission on Judicial Performance, is

expressly empowered to suspend, retire, censure, or remove ajudge.

[See Cal.Jur.2d, Judges, § 24; Am.Jur.2d, Judges, § 17 et seq.]

(3) Judges § 6--Removal--Noncriminal Nature of Special

Proceeding--Jury Trial Inapplicable.The special proceeding to determine a recommendation by theCommission on Judicial Performance to retire, censure, or remove

a judge (Cal. Const., art. VI, §§ 8, 18) is not a criminalprosecution in which the ordinary criminal procedural safeguardsapply, and is therefore not a proceeding in which the judge is

entitled to a trial by jury under U.S. Const., art. III, § 2, cl.


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3, and the Sixth and Seventh Amendments or Cal. Const., art. I, §16.

(4) Judges § 6--Removal--Special Proceeding as Not ConstitutingCivil Action--Jury Trial Inapplicable.

No statute provides for trial by jury in a special proceeding to

determine a recommendation by the Commission on JudicialPerformance to retire, censure, or remove a judge (Cal. Const.,

art. VI, §§ 8, 18), and such a proceeding did not exist at commonlaw. Because, therefore, the right to trial by jury in civilactions or proceedings is the right as it existed at common law

at the time the federal and California Constitutions wereadopted, an associate justice of the Supreme Court, whose mentalunfitness to continue in office was determined in such a

proceeding, was not entitled to trial by jury as provided forcivil actions.

(5) Judges § 6--Removal--Special Proceeding--Standard of Proof.In a special proceeding under Cal. Const., art. VI, § 8, and §

18, subd. (e), as implemented by Cal. Rules of Court, rule 921,to inquire into and determine the mental and physical fitness of

an associate justice of the Supreme Court to continue in office,due process and equal protection of the law did not require astandard of proof beyond a reasonable doubt, where he was neither

charged with a crime nor threatened by confinement in a statemental institution. The proper standard of proof was by clear andconvincing evidence sufficient to sustain a charge to a

reasonable certainty.

(6) Judges § 6--Removal--Special Proceeding--Inclusion of

Non-lawyers in Commission on Judicial Performance.

In a special proceeding under Cal. Const., art. VI, § 8 and §18, subd. (e), as implemented by Cal. Rules of Court, rule 921,

to inquire into and determine the mental fitness of an associatejustice of the Supreme Court to continue in office, the justice,in the initial investigation and hearing by the Commission on

Judicial Performance, had no constitutional right to be judged byjudges who were lawyers, and the fact that two of the ninemembers of the commission were neither judges nor lawyers wasimmaterial. In any event, the commission's recommendations were

subject to ultimate determination by a tribunal of sevenappellate court justices based on its independent review of theevidence.

(7a, 7b) Judges § 6--Removal--Special Proceeding--Objection toJurisdiction--Procedural Due Process.

An objection to jurisdiction, if based on lack of jurisdictionof the subject matter, can be made at any time. Thus, in aninvestigation and hearing by the Commission on Judicial

Performance (Cal. Const., art. VI, §§ 8, 18, subd. (e)), on thequestion of the mental fitness of an associate justice of theSupreme Court to continue in office, the fact that Cal. Rules of

Court, rule 906, relative to such proceeding, provided that "The


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notice of formal proceedings and answer shall constitute all thepleadings" and that "no motion or demurrer shall be filed against

any of the pleadings" did not preclude the justice from moving todismiss the proceeding for lack of jurisdiction, and he was notdenied procedural due process where, after proper notice of the

proceeding, he did in fact object to the commission's

jurisdiction, and where he was given a complete hearing on thecharges with full opportunity to question any alleged fact.

(8) Judges § 6--Removal--Special Proceeding--Objections toNotice of Proceeding.

With respect to investigations and hearings by the Commission onJudicial Performance involving recommendations for the censure,removal, or retirement of judges (Cal. Const., art. VI, §§ 8,

18), the apparent purpose of Cal. Rules of Court, rule 906, inproviding that "The notice of formal proceedings and answer shallconstitute all the pleadings" and that "no motion or demurrer

shall be filed against any of the pleadings" is to require therespondent-judge to state his objections in his answer to the

notice.

(9) Judges § 6--Removal--Special Proceeding--Retirement asAppropriate Disposition--Disability of Associate Justice of theSupreme Court.

On evidence that an 82-year-old associate justice of the SupremeCourt, who had been on that court for 20 of his 50 years as ajudge, was suffering from chronic brain syndrome (senile

dementia) detrimental to the performance of his official duties,that the disability was (or was likely to become) permanent, andof specific instances of bizarre behavior on his part that, if

viewed in isolation rather than as a symptom of senility, would

have supported his removal from office for wilful misconductprejudicial to the administration of justice, the appropriate

disposition of his case, at the conclusion of a specialproceeding under Cal. Const., art. VI, §§ 8, 18, subd. (e), asimplemented by Cal. Rules of Court, rule 921, was to order his

immediate retirement from the court (Cal. Const., art. VI, § 18,subd. (c)(l)), and that he should be considered to have retiredvoluntarily (Cal. Const., art. VI, § 18, subd. (d)).

COUNSEL

Eugene J. Majeski, Ropers, Majeski, Kohn, Bentley & Wagner,

Gregory S. Stout and Wallace P. Douglass for Petitioner.

W. O. Weissich, Randolph E. Heubach and Weissich & Heubach for

Respondent.

Henry W. Howard, A. James Robertson II, Jerome B. Falk, Jr.,

Howard, Prim, Rice, Nemerovski, Canady & Pollak, Thomas F.Overlander and Caplan & Overlander for conservator of the personand estate of Petitioner.


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THE TRIBUNAL. [FN*]

FN* Before Taylor, J., Tribunal P. J., Tamura, J., Stephens,J., Thompson, J., Caldecott, J., Paras, J., and McDaniel, J.

The Commission on Judicial Performance (hereafter the

Commission) has recommended the retirement or removal ofAssociate Justice Marshall F. McComb from the California Supreme

Court (see Cal. Const., art. VI, §§ 8 and 18; Cal. Rules ofCourt, rules 901-922). The Commission's recommendation that the82-year-old justice by retired is based on its findings and

conclusions that he is suffering from a disability that seriouslyinterferes with the performance of his judicial duties and thatthe disability is, or is likely to become, permanent (Cal.

Const., art. VI, § 18, subd. (c)(1)). The Commission'srecommendation that Justice McComb be removed is based on itsfindings and conclusions that he has wilfully and persistently

failed to perform his judicial duties, and has engaged in conductprejudicial to the administration of justice and conduct which

brings the judicial office into disrepute (Cal. Const., art. VI,§ 18, subd. (c)(2), before amend. eff. Nov. 2, 1976). [FN1]

FN1 While this matter was pending before the special mastersfor hearing in October and November 1976, the California

electorate approved Proposition 7 at the general election onNovember 2, 1976, and thereby amended, as of that date,sections 8 and 18 of article VI of the state Constitution,

as follows (deleted provisions are printed in type and newprovisions are printed in italic type):" SEC. 8. The Commission on Judicial Performance consists

of 2 judges of courts of appeal, 2 judges of superior

courts, and one judge of a municipal court, each appointedby the Supreme Court; 2 members of the State Bar who have

practiced law in this State for 10 years, appointed by itsgoverning body; and 2 citizens who are not judges, retiredjudges, or members of the State Bar, appointed by the

Governor and approved by the Senate, a majority of themembership concurring. All terms are 4 years."Commission membership terminates if a member ceases to holdthe position that qualified the member for appointment. A

vacancy shall be filled by the appointing power for theremainder of the term." SEC. 18. (a) A judge is disqualified from acting as a

judge, without loss of salary, while there is pending (1) an

indictment or an information charging the judge in theUnited States with a crime punishable as a felony under

California or federal law, or (2) a recommendation to theSupreme Court by the Commission on Judicial Performance forremoval or retirement of the judge.

"(b) On recommendation of the Commission on JudicialPerformance or on its own motion, the Supreme Court maysuspend a judge from office without salary when in the

United States the judge pleads guilty or no contest or is


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found guilty of a crime punishable as a felony underCalifornia or federal law or of any other crime that

involves moral turpitude under that law. If theconviction is reversed, suspension terminates, and the judgeshall be paid the salary for the judicial office held by the

judge for the period of suspension. If the judge is

suspended and the conviction becomes final the Supreme Courtshall remove the judge from office.

"(c) On recommendation of the Commission on JudicialPerformance the Supreme Court may (1) retire a judge fordisability that seriously interferes with the performance of

the judge's duties and is or is likely to become permanent,and (2) censure or remove a judge for action occurring notmore than 6 years prior to the commencement of the judge's

current term that constitutes wilful misconduct in office,persistent failure or inability to perform the judge'sduties, habitual intemperance in the use of intoxicants or

drugs, or conduct prejudicial to the administration ofjustice that brings the judicial office into disrepute. The

commission may privately admonish a judge found to haveengaged in an improper action or a dereliction of duty,

subject to review in the Supreme Court in the mannerprovided for review of causes decided by a court of appeal."(d) A judge retired by the Supreme Court shall be

considered to have retired voluntarily. A judge removed bythe Supreme Court is ineligible for judicial office andpending further order of the court is suspended from

practicing law in this State. "(e) A recommendation of theCommission on Judicial Performance for the censure, removalor retirement of a judge of the Supreme Court shall be

determined by a tribunal of 7 court of appeal judges

selected by lot."(f) The Judicial Council shall make rules implementing this

section and providing for confidentiality of proceedings."

Having undertaken an independent evaluation of the evidence, we

concur in the Commission's finding that Justice McComb issuffering from a disability (chronic brain syndrome, seniledementia) that seriously interferes with the performance of hisjudicial duties and that the disability is, or is likely to

become, permanent. We conclude also that the Commission'sfindings of wilful and persistent failure to perform judicialduties are not supported by the record and that no cause for

discipline exists through conduct prejudicial to the

administration of justice which brings the judicial office intodisrepute. Accordingly, we order the retirement of Associate

Justice Marshall F. McComb from the Supreme Court of the State ofCalifornia.

(1) Justice McComb petitioned the Supreme Court for a writ ofreview, which was granted, and he has petitioned that court toreject or modify the Commission's recommendations (Cal. Rules of

Court, rule 919(b)). Pursuant to article VI, section 18,


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subdivision (e), of the state Constitution, as amended onNovember 2, 1976, seven California Court of Appeal justices were

selected by lot to constitute a tribunal to review theCommission's recommendations and to determine the matter. [FN2]Petitioner has filed an objection to this tribunal's authority to

make such determination, contending that section 18, subdivision

(e) and the court rule implementing that section (rule 921), asto him, violate the federal and state prohibitions against ex

post facto laws (U.S. Const., art. I, § 9, cl. 3, and § 10; Cal.Const., art. I, § 9). The objection, however, is without meritbecause section 18, subdivision (e) is merely a procedural

change, as distinguished from a change of substantive law whichadversely affects petitioner's rights and thus it is not an expost facto law as applied to petitioner (see, generally, Beazell

v. Ohio (1925) 269 U.S. 167 [ 70 L.Ed. 216, 46 S.Ct. 68]; Duncanv. Missouri (1894) 152 U.S. 377 [ 38 L.Ed. 485, 14 S.Ct. 570];cf. Keiser v. Bell (E.D.Pa. 1971) 332 F.Supp. 608, 620-624).

FN2 Listed in alphabetical order, the seven Court of Appeal

justices so selected are: Presiding Justice Thomas W.Caldecott, First Appellate District, Division Four (San

Francisco); Associate Justice F. Douglas McDaniel, FourthAppellate District, Division Two (San Bernardino); AssociateJustice George E. Paras, Third Appellate District

(Sacramento); Associate Justice Clarke E. Stephens, SecondAppellate District, Division Five (Los Angeles); AssociateJustice Stephen K. Tamura, Fourth Appellate District,

Division Two (San Bernardino); Presiding Justice WakefieldTaylor, First Appellate District, Division Two (SanFrancisco); Associate Justice Robert S. Thompson, Second

Appellate District, Division One (Los Angeles).

(2) Petitioner has maintained throughout this proceeding that

impeachment is the only constitutional way he, as a duly electedjustice, [FN3] may be removed from the court. Although judges ofstate courts are subject to impeachment for misconduct in office

(Cal. Const., art. IV, § 18, subd. (b); Gov. Code, § 3020),impeachment is not the only procedure for removing a judge from acourt. By adoption of article VI, sections 8 and 18 of the stateConstitution, the people of this state have expressly empowered

the Supreme Court, on recommendation by the Commission, tosuspend, retire, censure, or remove a judge for the reasonsstated in section 18 (see fn. 1, ante). This procedure is a

constitutional alternative to the impeachment process (see Geiler

v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270,282 [ 110 Cal.Rptr. 201, 515 P.2d 1], cert. den. 417 U.S. 932 [

41 L.Ed.2d 235, 94 S.Ct. 2643]; cf. In re Kelly (Fla. 1970) 238So.2d 565, 568-569, cert. den. 401 U.S. 962 [ 28 L.Ed.2d 246, 91S.Ct. 970]; Cusack v. Howlett (1969) 44 I11.2d 233 [ 254 N.E.2d

506]; In re Terry (1975) 262 Ind. 667 [ 323 N.E.2d 192], rehg.den. 329 N.E.2d 38, cert. den. 423 U.S. 867 [ 46 L.Ed.2d 97, 96S.Ct. 129]; In re Inquiry Relating to Rome (1975) 218 Kan. 198 [

542 P.2d 676]; In re Haggerty (1970) 257 La. 1 [ 241 So.2d 469];


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In re Diener and Broccolino (1973) 268 Md. 659 [ 304 A.2d 587],cert den. 415 U.S. 989 [ 39 L.Ed.2d 885, 94 S.Ct. 1586]).

FN3 Petitioner has been a judge on the courts of this statefor nearly 50 years. He was appointed to the Supreme Court

in 1956, and the electorate later approved a 12-year term on

the court commencing in January 1967.

(3) Petitioner attacks the validity of this proceeding on broadconstitutional grounds involving the alleged denial of dueprocess and equal protection of the laws. His basic premise is

that this proceeding is a "criminal prosecution" in which he isentitled to the same constitutional rights, privileges andimmunities afforded defendants in criminal cases, particularly

the right to trial by jury, the right to be presumed innocentuntil proven guilty beyond a reasonable doubt, the right to bejudged by judges who are lawyers, and protection from ex post

facto laws and bills of attainder.

In contending that this proceeding is a criminal prosecution,petitioner relies on Penal Code section 15, which was enacted in

1872, and defines a crime or public offense as "an act committedor omitted in violation of a law forbidding or commanding it, andto which is annexed, upon conviction, either of the following

punishments: "1. Death: [¶] 2. Imprisonment; [¶] 3. Fine; [¶] 4.Removal from office; or, [¶] 5. Disqualification to hold andenjoy any office of honor, trust, or profit in this State."

(Italics added.) Citing this statute and cases that involved theremoval of public officers from office pursuant to former PenalCode sections 758-771 (now Gov. Code, §§ 3060- 3073), [FN4]

petitioner argues that since the Commission has recommended his

removal from the court, he is being punished for an unlawful act,and therefore this proceeding is a criminal prosecution.

FN4 These statutes provide for removal of certain publicofficers by a procedure other than impeachment. It begins

with a grand jury accusation (Gov. Code, § 3060) and isconducted as a criminal proceeding, including the right totrial by jury (Gov. Code, § 3070). Presumably, it was inlight of this procedure for removal of public officers from

office that the Legislature included removal from office inits definition of a crime or public offense (Pen. Code, §15).

A criminal action is a proceeding in which a person charged witha public offense is accused and brought to trial and punishment

(Pen. Code, § 683). In the instant proceeding, petitioner is notcharged with unlawful acts which constitute criminal offenses.Nor is the proceeding designed to convict petitioner of a crime

or to punish him for criminal acts. Rather, this proceeding islimited to an inquiry and determination whether petitioner isphysically and mentally capable of performing his judicial

duties, or whether he has wilfully and persistently failed to


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perform those duties, or whether he has engaged in conductprejudicial to the court and the administration of justice. These

grounds for retirement or removal of a judge do not require proofof criminal misconduct. The ultimate objective is to protect thejudicial system and the public which it serves from judges who

are unfit to hold office. Accordingly, we hold that a proceeding

to retire, censure, or remove a judge pursuant to article VI,sections 8 and 18 of the state Constitution, is not a criminal

prosecution in which the ordinary criminal procedural safeguardsapply (cf. In re Kelly, supra, 238 So.2d 565, 569; In re InquiryRelating to Rome, supra, 218 Kan. 198; In re Haggerty, supra, 257

La. 1; In re Diener and Broccolino, supra, 268 Md. 659; In theMatter of Mikesell (1976) 396 Mich. 517 [ 243 N.W.2d 86, 90-91];In re Crutchfield (1975) 289 N.C. 597 [ 223 S.E.2d 822, 825];

Sharpe v. State ex rel. Oklahoma Bar Association (Ct. on theJudiciary of Okla. 1968) 448 P.2d 301, cert. den. 394 U.S. 904 [22 L.Ed.2d 216, 89 S.Ct. 1011]; Keiser v. Bell, supra, 332

F.Supp. 608, 616-617). [FN5]

FN5 This proceeding is analogous to a State Bar disciplinaryproceeding which is not a criminal action (see Prime v.

State Bar (1941) 18 Cal.2d 56, 62 [ 112 P.2d 881]; Emslie v.State Bar (1974) 11 Cal.3d 210, 224 [ 113 Cal.Rptr. 175, 520P.2d 911]. Proceedings before the State Bar are sui generis,

neither civil nor criminal in character, and the ordinarycriminal procedural safeguards do not apply (Yokozeki v.State Bar (1974) 11 Cal.3d 436, 447 [ 113 Cal.Rptr. 602, 521

P.2d 858]; Emslie v. State Bar, supra, 11 Cal.3d at pp.225-226). The purpose of the State Bar disciplinaryproceeding is not to punish the individual attorney, or

determine whether the attorney is guilty of a crime, but to

determine whether the attorney should be allowed to continuethe practice of law. The principal objective of the

proceeding is to protect the courts, the legal profession,and the public from persons unfit to practice law (In reVaughan (1922) 189 Cal. 491, 495-496 [ 209 P. 353, 24 A.L.R.

858]; In re Rothrock (1940) 16 Cal.2d 449, 454 [ 106P.2d 907, 131 A.L.R. 226]; Best v. State Bar (1962) 57Cal.2d 633, 637 [ 21 Cal.Rptr. 589, 371 P.2d 325]; Zitny v.State Bar (1966) 64 Cal.2d 787, 790-791 [ 51 Cal.Rptr. 825,

415 P.2d 521], fn. 1; Black v. State Bar (1972) 7 Cal.3d676, 686 [ 103 Cal.Rptr. 288, 499 P.2d 968]; Emslie v. StateBar, supra, 11 Cal.3d, p. 225; Wong v. State Bar (1975) 15

Cal.3d 528, 531 [ 125 Cal.Rptr. 482, 542 P.2d 642]; Segretti

v. State Bar (1976) 15 Cal.3d 878, 886 [ 126 Cal.Rptr. 793,544 P.2d 929]). Thus, an attorney who is the subject of a

State Bar disciplinary proceeding does not have a right to ajury trial (Johnson v. State Bar (1935) 4 Cal.2d 744, 758 [52 P.2d 928]; In re Wharton (1896) 114 Cal. 367, 370 [ 46 P.

172]), and the standard of proof is clear and convincingevidence sufficient to sustain a charge to a reasonablecertainty (Medoff v. State Bar (1969) 71 Cal.2d 535, 550 [

78 Cal.Rptr. 696, 455 P.2d 800]).


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Petitioner contends he was denied his constitutional right to a

trial by jury (U.S. Const., art. III, § 2, cl. 3, and Amends. 6and 7; Cal. Const., art. I, § 16). Because this is not a criminalaction or proceeding, however, petitioner was not entitled to a

jury trial as a defendant in a criminal prosecution (Sharpe v.

State ex rel. Oklahoma Bar Association, supra, 448 P.2d 301; Inre Inquiry Relating to Rome, supra, 218 Kan. 198; Keiser v. Bell,

supra, 332 F.Supp. pp. 616-617). (4) The right to a trial by juryin civil actions or proceedings is the right as it existed atcommon law at the time the Constitutions were adopted (People v.

One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286-287 [ 231 P.2d832]; Cline v. Superior Court (1920) 184 Cal. 331, 339 [ 193 P.929]; In re Inquiry Relating to Rome, supra). Because this

special proceeding did not exist at common law, and no statuteprovides for trial by jury in this proceeding, petitioner was notentitled to a jury trial.

(5) Petitioner contends that he was improperly denied the

presumption of innocence and the standard of proof beyond areasonable doubt (Pen. Code, § 1096). He argues that if due

process of law and equal protection of the law require a standardof proof beyond a reasonable doubt in a juvenile court proceeding(In re Winship (1970) 397 U.S. 358 [ 25 L.Ed.2d 368, 90 S.Ct.

1068]) and in a proceeding to determine whether a person is amentally disordered sex offender (People v. Burnick (1975) 14Cal.3d 306 [ 121 Cal.Rptr. 488, 535 P.2d 352]), due process and

equal protection of the law require a standard of proof beyond areasonable doubt in this proceeding. Although the juvenile courtproceeding is not considered a criminal proceeding, the standard

of proof beyond a reasonable doubt applies where, pursuant to

section 602 of the Welfare and Institutions Code, the issue iswhether the juvenile has committed an act which would be a crime

if he were prosecuted as an adult. In mentally disordered sexoffender proceedings (Welf. & Inst. Code, § 6300 et seq.), proofbeyond a reasonable doubt is required because of possible

indeterminate confinement in a prison-like state mentalinstitution. In this proceeding, as previously discussed,petitioner is not charged with the commission of a crime. Nor ishe threatened by confinement in a state mental institution.

Accordingly, due process and equal protection of the law do notrequire proof beyond a reasonable doubt in this proceeding. Theproper standard is proof by clear and convincing evidence

sufficient to sustain a charge to a reasonable certainty (Geiler

v. Commission on Judicial Qualifications, supra, 10 Cal.3d, p.275).

(6) Petitioner contends that since the Commission includes twocitizens who are not judges or lawyers who are members of the

State Bar (Cal. Const., art. VI, § 8), he was denied hisconstitutional right to be "judged by judges who are lawyers." Hecites Gordon v. Justice Court (1974) 12 Cal.3d 323 [ 115

Cal.Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551], cert. den. 420 U.S.


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938 [ 43 L.Ed.2d 415, 95 S.Ct. 1148], which held that in criminalcases in which the defendant is charged with an offense carrying

a possible jail sentence, the use of a nonattorney judge is aviolation of due process of law unless the defendant consentsthereto. He also relies on Colten v. Kentucky (1972) 407 U.S. 104

[ 32 L.Ed.2d 584, 92 S.Ct. 1953], North v. Russell (1976) 427

U.S. 328 [ 49 L.Ed.2d 534, 96 S.Ct. 2709], and Ludwig v.Massachusetts (1976) 427 U.S. 618 [ 49 L.Ed.2d 732, 96 S.Ct.

2781]. Again, petitioner's argument is based on the premise thatthe investigation and hearing conducted by the Commission was acriminal proceeding. The Commission, however, is not a court. It

can render no judgment, civil or criminal, and thus could not"convict" petitioner of a criminal offense. Moreover, theultimate decision in this proceeding must be made by this

tribunal, based on its independent review of the evidence (Geilerv. Commission on Judicial Qualifications, supra, 10 Cal.3d, p.276). Accordingly, the presence of two nonlawyer citizens on the

Commission did not deprive petitioner of due process or equalprotection of the law.

(7a) Petitioner contends that California Rules of Court, rule

906, which precluded him from filing a motion or demurrer againstthe notice of formal proceedings, resulted in a denial ofprocedural due process and equal protection of the law. He argues

that rule 906: (1) precluded him from objecting to theCommission's jurisdiction of his person and the subject matterand the sufficiency of the facts alleged in the notice; [FN6] and

(2) rule 906 does not encompass procedures allowed an attorney ina State Bar disciplinary proceeding. (8) The apparent purpose ofrule 906 is to require the respondent-judge to state his

objections in his answer to the notice of formal proceedings (cf.

Rules Proc. of State Bar, rule 15.10 [3B West's Ann. Bus. & Prof.Code (1974 ed. 1977 cum.supp.) foll. § 6087 (as amended Jan. 1,

1976); Deering's Cal. Codes Ann. Rules (1976 ed.) p. 658]). (7b)The rule, however, did not preclude petitioner from moving todismiss the proceeding for lack of jurisdiction since that

objection, if based on lack of jurisdiction of the subjectmatter, can be made at any time. Petitioner in fact objected tothe Commission's jurisdiction, and thus he was not prejudiced bythe lack of a rule providing for objection to the Commission's

jurisdiction. Because petitioner was given proper notice of theproceeding and a complete hearing on the charges, with fullopportunity to question any alleged fact, he was not denied

procedural due process (cf. In re Robson (Alaska 1972) 500 P.2d

657, 661).

FN6 Rule 905 provides for a written notice of formalproceedings which must specify the charges against the judgeand the facts on which the charges are based. Rule 906

provides that the notice of formal proceedings and answershall constitute all the pleadings, and "no motion ordemurrer shall be filed against any of the pleadings."


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Petitioner has made the following additional contentions whichwe have reviewed, find to be unsupported by the record,

irrelevant or without merit, and warrant no further discussion:

(1) The Commission's denial of petitioner's motion to refer the

matter back to the special masters for the taking of additional

evidence pertaining to the sponsorship and drafting ofProposition 7 (see fn. 1) resulted in a denial of his

constitutional right to confront and cross-examine the witnessesagainst him.

(2) The Commission's findings that petitioner wilfully andpersistently failed to perform his judicial duties constitute ausurpation of the Legislature's constitutional prerogative to

define crimes, and thereby violate the doctrine of separation ofpowers.

(3) This proceeding is an unconstitutional invasion of theindependence of the judiciary.

(4) This proceeding violates the rule of judicial immunity from

prosecution.

(5) This proceeding violates petitioner's First Amendment rights

"not to speak," "not to associate," and "not to express anopinion" in the performance of his judicial duties.

(6) The Commission's finding that petitioner wilfully andpersistently failed to perform his duties is based on anunconstitutionally vague standard (cf. Keiser v. Bell, supra, 332

F.Supp., pp. 612-615; see also, Sarisohn v. Appellate Div.,

Second Dept., S.Ct. of St. of N. Y. (E.D.N.Y. 1967) 265 F.Supp.455; Napolitano v. Ward (N.D.Ill. 1970) 317 F.Supp. 79, 83).

(7) Failure of the Commission to state its reasons for itsdecisions constituted a denial of due process (see, generally,

People v. Edwards (1976) 18 Cal.3d 796 [ 135 Cal.Rptr. 411, 557P.2d 995]).

(8) Petitioner was denied his constitutional right to a trial by

an unbiased tribunal.

(9) The retirement or removal of petitioner from the court

because of senility constitutes cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments of the UnitedStates Constitution.

(9) Following the procedure and standard of review as set forthin Geiler v. Commission on Judicial Qualifications, supra, 10

Cal.3d, pages 275-276, and Spruance v. Commission on JudicialQualifications (1975) 13 Cal.3d 778, 784-785 [ 119 Cal.Rptr. 841,523 P.2d 1209], footnote 5, we have made an independent

evaluation of the evidence presented to the special masters and


13/13

the Commission, and we find clear and convincing evidencesufficient to sustain a charge "to a reasonable certainty," that

petitioner is suffering from a disability which renders himunable to perform his judicial duties, and that the disabilityis, or is likely to become, permanent. [FN7]

FN7 We adopt the Commission's findings of fact as theyrelate to count Three of the notice of formal proceedings.

The record establishes specific instances of bizarre behavior byJustice McComb which, if viewed in isolation, would support

discipline for conduct prejudicial to the administration ofjustice which brings the judicial office into disrepute. Thatconduct must be considered as symptomatic of the condition of

chronic brain syndrome (senile dementia) which we find to exist.Balancing the gravity of the conduct against the reason for itand the public interest in an effective judiciary, we conclude

that discipline in the form of removal from office or reprimandis not appropriate. The public interest is sufficiently served by

the retirement of Justice McComb.

Similar factual analysis establishes that the Commission'sfindings of wilful misconduct on the part of Justice McComb arenot supported by the evidence. The conduct in question was not

wilful, but is symptomatic of senility. Accordingly, wedisapprove the Commission's findings of wilful misconduct.

We conclude, therefore, that our constitutional responsibilitiesto maintain the integrity of the judicial system compel us toorder the retirement of petitioner from the court (Cal. Const.,

art. VI, § 18, subd. (c)(1)). [FN8] Petitioner shall be

considered to have retired voluntarily (Cal. Const., art. VI, §18, subd. (d)). We hereby order the retirement of Associate

Justice Marshall F. McComb from the Supreme Court of the State ofCalifornia. This order is final forthwith.

FN8 Article VI, section 18, subdivision (c)(1) of the stateConstitution was not changed by approval of Proposition 7 onNovember 2, 1976; therefore, it obviously is not an ex postfacto law as applied to petitioner (see, generally, In re

Valenzuela (1969) 275 Cal.App.2d 483, 486 [ 79 Cal.Rptr.760]; cf. Matter of Heuermann (S.D. 1976) 240 N.W.2d 603,607-608). Nor does the retirement of petitioner pursuant to

section 18, subdivision (c)(1) constitute a bill of

attainder (see, generally, Westmoreland v. Chapman (1968)268 Cal.App.2d 1, 5 [ 74 Cal.Rptr. 363], and cases cited).

Cal. 1977.

McComb v. Commission on Judicial Performance

END OF DOCUMENT

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